Philanthropy or probity

Can we forever rely on the philanthropy of powerful women and men? The Beyond Zero Campaign is philanthropy writ large, the efforts of a powerful woman to provide "mobile clinics" for the use of pregnant women. The recent week's efforts by the Governor of Nairobi to remove, through the efforts of the Sonko Rescue Team, the mounds of rubbish festering on our streets and in some of our neighbourhoods is philanthropy writ large too. In both cases, a man and a woman have chosen to provide public services in their private capacities. In both cases, Government has abdicated its duty to citizens and its officials not been held to account for it.

If you own property in Nairobi City County, then it is inevitable that you pay rates to the County Government. If you are gainfully employed, formally or not, you likely pay income tax to the Government of Kenya. In both cases, you are a taxpayer but the taxes you pay have not translated into public services of reasonable quality. Indeed, in the case of the Beyond Zero Campaign, a sizeable chunk of your taxes was handed over to the Campaign. Irony, it seems, is not something Government could recognise if it cam and pinched its bottom.

Hundreds of billions of shillings are collected in each year by Government through various forms of taxes. Tens of billions of these shillings are wasted or stolen in each year. The existence of "powerful" agencies such as the Ethics and Anti-Corruption Commission or the Auditor-General or the establishment and operationalisation of accounting systems such as IFMIS seem not to have reduced the waste or the theft. No less an authority than the Head of Government has admitted that at least one-third of the national revenue is wasted or stolen.

It is almost two weeks since we elected new Governors and re-elected the President. (The petition is a formality that no one seriously expects to reverse the verdict of the IEBC.) In the waning days of the general election, the discourse on the waste and theft of the national revenue only animated a few of the candidates. Whether the successful candidates spoke of these things or not, it is time we demanded an end to philanthropy when it comes to public services such as healthcare or sanitation. As taxpayers, we have a right to have our taxes spent in providing these services and to hold to account the public officials who allow the national revenue to be wasted, stolen or both. We have a right to demand that the anti-corruption watchdog and the Auditor-General outline their efforts to reduce waste and eliminate theft, or else seek gainful employment in the mediocre world of television political pundits or FM radio deejaying. Be that as it may, though, at national level, the buck stops with the president and at county level, it stops with the governor.

We should not longer accept the "I have done my part" argument that has been used in the past to shirk ultimate responsibility. As Head of Government -- both national and county -- the President has no choice but to finally grasp the nettle that is the waste and theft of our national revenue. It is his responsibility to ensure that constitutional promises -- such as good healthcare and acceptable public sanitation -- are not held hostage to the bright lights of private philanthropy but are realised out of the proper husbandry of the national revenue and the merciless punishment of the wasteful and quick-fingered. Where the President leads, the governors shall follow. If he is politically and administratively mendacious, so will they be. If he is bold and leads by example, ensuring that he is a good steward of public funds and the implacable enemy of wastrels and thieves, so too shall the governors be. Legacies are not just seen in monuments such as railways and highways; they are also seen in character. Philanthropy or probity: in five years, we will know.

Give back our pavements, Governor, or else...

Governor,

Congratulations. Now that you're the man in charge, there will be many opportunities for you to screw up. Please try and avoid them. Our needs as residents of this city are many and we shall hold you responsible if they are not addressed. We won't hold your deputy or members of your executive to account. We shall lay it all on you. Your predecessor failed to learn this vital lesson in the five years he was in charge as mounds of garbage grew and pavements were commandeered by boda boda operators and their motorcycles, the resurgent street families, the obstructive "hawkers", matatus and, believe it or not, banks and the national government.

You have set yourself the task of sorting out the garbage problem. In a month we'll see whether you are all hat and no cattle. One of our bigger problems as visitors, users and workers in this city is how we cannot walk with ease in the city's business district. If you are on the wrong side of Moi Avenue, it is matatus, boda bodas, hawkers and taxis that have commandeered our pavements, forcing many of us to walk on the road, dodging still more cars, matatus, boda bodas and, ironically, hawkers. The situation along Haile Selassie Avenue, between the Retail Market and Coffee Plaza is emblematic of this phenomenon. If you want top marks for your leadership, we want our pavements back!

If you walk on the right side of Moi Avenue, it is the national and county governments that are the most egregious offenders. Your predecessor excised a large portion of Wabera Street outside City Hall in the name of security. Those barriers should be removed; they have constricted the available space to pedestrians and put us in danger of being run over by motorists. But the asinine behaviour of the national government is inexplicable. Ropes and chains have cordoned off vast swathes of pavement -- along Taifa Road next to Jogoo House A, along Harambee Avenue outside Vigilance House, Harambee House, Harambee House Annexe and Sheria House, along Haile Selassie Avenue outside the Central Bank, along L.T. Tumbo Avenue again outside Vigilance House but also outside Times Tower, Central Bank, Herufi House and the National Treasury. Then you have land grabs such as the one outside Kencom House on Nkrumah Avenue. We need our pavements back!

All government buildings, whether they belong to the national government or the county government, have adequate security. It is not necessary for the both of you to take over public spaces in the name of security. As you are very well aware, not all of Nairobi's visitors, residents or workers own motor vehicles; pavements are the only way we can get to work or make our appointments. If you don't restore our pavements to us, there will be hell to pay come the next general election.

We will reserve judgment on your promises regarding water services, public health and sanitation, county healthcare services, public transport and public safety. If in one year there is no improvement in any of these things, our disapprobation will be made very, very clear. For now, though, GIVE US BACK OUR PAVEMENTS!

Making it work for us

I have written about the failure of imagination that infects the constitutional two-thirds gender rule. I believe this is a hangover from our fidelity to the Westminster parliamentary model, founded as it is on the division of the country into political constituencies that largely mirror ethnic or linguistic divisions. For example, the central Kenya constituencies are largely occupied by the Kikuyu-speaking peoples, the Nyanza constituencies are largely occupied by the Luo peoples, the Ukambani constituencies are largely occupied by the Wakamba, et cetera. The Westminster parliamentary model may have been jettisoned in principle -- we are now a "presidential" system -- but its vestiges can be seen in the language of Articles 97(1)(a) and (b) and 98(1)(a), which speak of "single member constituencies".

It was a mistake that we didn't push the Committee of Experts hard enough to consider alternative ways of constituting Parliament. In Nairobi City County, for example, the Independent Electoral and Boundaries Commission claims that there are over two million and three hundred thousand voters in its seventeen constituencies, which works out to just under 136,000 constituencies per member of the National Assembly. This is too large a number, even for the most conscientious MP, to handle face to face or, as is common, through barazas. Email, letters, text messages or phone calls will surely overwhelm the elected representative too. The constituency system is familiar and it explains its resiliency in our politics but it is outdated and no longer effectively represents the people.

However, our constitution proposes new political values and principles, including non-discrimination which are intended to foster greater national cohesion. While national power and fiscal resources have been devolved to the counties and thereby, beginning the task of promoting equity in the sharing of the "national cake", the national political arrangements have exacerbated existing inequities and inequalities and none more so than the poor representation of women in Parliament or the national executive. Article 27(8) proposes a ceiling beyond which members of one gender shall not breach in regards to elective position but Articles 97 and 98 are insufficient to ensuring that the proposal is implemented without constitutional amendment to provide for greater numbers of nominees to Parliament's two chambers.

If constitutional amendments are ever to be successfully processed in our fractious political system, I would propose the amendment to Articles 97 and 98 to delete the words "each elected by the registered voters of single member constituencies", and "each elected by the registered voters of counties, .each county constituting a single member constituency". I would also delete Articles 97(1)(b) and 98(1)(b). I would then amend the Elections Act to make provisions for how political parties would have to publish party lists that reflected the two-thirds gender principle and have the voters cast their ballots in favour of the party that best reflected their political visions. Once the votes have been counted and the tally of each political party determined, parliamentary seats would be allocated proportionately to each party -- first to reflect the party's strength from the total votes cast and second to reflect the two-thirds gender principle in the elected representatives of the party in Parliament. Because there would be no constituencies from which to choose individual MPs, there would also be no need for independent candidates (a compromise that will irk many but reflect the needs of the majority nonetheless).

The same wouldn't be necessary at county level; ward representatives deal with smaller numbers of constituents and more effectively too. The impact, I believe, would be greater national cohesion. No party would be allowed to participate in an election if it didn't publish party lists that represented every community in Kenya or reflected the two-thirds gender principle. Marginalised communities would be protected and given a say as well. Elected representatives wouldn't have to pander to the needs of ethnic or linguistic communities; after all, as "national" politicians, their focus should be on making effective laws that benefit everyone, while their oversight powers are actually exercised with the aim of keeping the national executive in line. As a bonus, Parliament could then compel the national executive and the Judiciary, the other arms of government, to actually implement the two-thirds gender principle too.

If we are serious about making this constitution work for us, then perhaps it is time we abandoned the received wisdom of the Westminster model or the U.S. presidential system. Perhaps, we should start thinking for ourselves and devise a political system that is an honest reflection of all the lessons we have learned from our history over the past sixty years.

Progressive?

marriage (n) 1. the legally or formally recognised union of two people as partners in a personal relationship (historically and in some jurisdictions specifically a union between a man and a woman) - Oxford English Dictionary

This is what the Constitution says about marriage in Article 45,

(2) Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.

...

(4) Parliament shall enact legislation that recognises—

(a) marriages concluded under any tradition, or system of religious, personal or family law; and
(b) any system of personal and family law under any tradition, or adhered to by persons professing a particular religion,

to the extent that any such marriages or systems of law are consistent with this Constitution.

The phrase "consistent with this Constitution" is interesting to me. I link it strongly to another provision in the Bill of Rights, Article 27, which states at clause (4) that,

(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

My copy of the Constitution uses the expression "shall not" one hundred times. You will notice that in Article 45(2), the expression is not used. The right protected by Article 45(2) is that of two adult heterosexual humans to freely consent to a marriage between them. Article 45(2) does not state that an adult shall not have the right to marry a person of the same sex. The power granted to Parliament in Article 45(4) is to make laws recognising two kinds of marriages: those concluded under any tradition, or system of religious, personal or family law, and any system of personal and family law under any tradition, or adhered to by persons professing a particular religion with one caveat, that is, so long as the laws are consistent with this Constitution (which I have linked to the non-discrimination clause in Article 27). Parliament has not been given the power under Article 54(4) to declare certain marriages or certain systems of personal or family law to be unrecognised or unlawful. (It is likely that if Parliament made such a law, and interpretation Article 27(4) could be used to challenge that law in the High Court.)

We claimed that our Constitution is one of the most progressive. One day we may be called upon to prove it.

Environmental wars

86. Standards for waste
The Cabinet Secretary shall, on the recommendation of the Authority—
(1) identify materials and processes that are dangerous to human health and the environment;
(2) issue guidelines and prescribe measures for the management of the materials and processes identified under subsection (1);
(3) prescribe standards for waste, their classification and analysis, and formulate and advise on standards of disposal methods and means for such wastes; or
(4) issue regulations for the handling, storage, transportation, segregation and destruction of any waste.

The above provision of law is to be found in the Environmental Management and Co-ordination Act (No. 8 of 1999). It is one of the provisions that the Cabinet Secretary for Environment and Natural Resources relied on to promulgate a "ban" on plastic bags. One of the rationales advanced by the National Environment Management Authority, NEMA, for the plastic bag is,

Plastic bags are usually manufactured for single use and generally tear or puncture after a first use. They are easily transported  by the wind and are some of the most visible components of roadside and shoreline litter. Plastic bags are produced from oil and natural gas, and never fully biodegrade, remaining in the environment as small or even microscopic particles, essentially forever.

If the Cabinet Secretary had intended to be effective in dealing with the way plastic bags are handled so that they are reduced as "visible components of roadside an shoreline litter",  as well as reducing the amount of non-biodegradable plastic "remaining in the environment as small and microscopic particles, essentially forever", her best strategy would have been to use the powers conferred by section 86, specifically subsections (3) and (4).

As it is we are confronted with the possibility that even if manufacturing and importation of plastic bags are suspended, the impact of the ban on individuals will be profound. Because the "ban" does not prescribe a punishment for contravening its provisions, we are forced to rely on section 144 which is, to say the least, extremely draconian: "imprisonment for a term of not less than one year but not more than four years, or to a fine of not less than two million shillings but not more than four million shillings, or to both such fine and imprisonment". It is foolishness to expect that every individual who is likely to contravene the provisions of this "ban" would see the fairness of a term of imprisonment of one to four years or a fine of between two and four million shillings! Now, if they had been dumping nuclear waste, I could understand the application of such a harsh penalty; but plastic bags?

This ban was made without properly considering how Kenyans live their lives on a day to day basis. Plastic bags are not just used to transport groceries from supermarkets or Gikomba; they are handy for keeping our meat fresh while being transported from the butchery and into our fridges; they are useful in storing our veggies too. There isn't a household in Kenya that does not reuse plastic bags in innovative ways: the legions of women who have to carry their heels to work as they walk in their flats, and the spectacularly slothful men who wrap their carried lunches in yesterday's Tuskys carrier bag. But the most important thing about plastic bags is their usefulness in disposing of waste in our homes. It isn't just the dust we've swept up or the leftover food from the kitchen that we must consider. We must also remember that in Nairobi's "informal settlements" the flying toilet relies on plastic bags otherwise the cholera pandemic the rich keep wishing on Korogocho, Kibera and Mathare Valley will become a reality.

It is clear that the Ministry and NEMA had no strategy for the day after the "ban" went into effect by the way they both keep revising the targets of their ban. Flat bags used for the disposal of garbage are banned. But then they are not so long as they are "within the required specifications". (What those specifications are and where they are published are known only to the environmental zealots on the Ministry and NEMA.) Few of us have any love for the petrochemical industry but we also know that environmental wars are not won by fighting ill-considered and badly-planned battles. To prevail in this fight against plastic bags, the "ban" is a loser. What we need is a credible national strategy that takes into account the critical role played by county governments in solid waste managment. The Ministry's diktats are not it.

We won't forget

I have a question for the Jubilation. Do you think that it is normal for officers in the police forces to invade a home, viciously assault an infant (who later dies from the trauma of the assault), lie about it and get away scot-free simply because the victim is the child of a family living in a political zone that has resolutely refused to support your favorite politician? I have watched the Jubilation's semanticising the killing of a baby and I believe that millions of Kenyans are with me when I say that I am utterly disgusted by the Jubilation's verbal contortions. The Jubilation has organised its entire identity around the abnegation of basic decency, wearing the supercilious smiles of the victors whose victory came about through chicanery and strutting abroad in the land with the arrogance of the self-absorbed narcissist who doesn't give a damn about the harm -- and hurt -- he causes. One day we will speak about this and the Jubilation's hatemongers will never wash off the stench of our disapprobation. Never.

Expose the charlatans

I know that my species is not held in high regard by the vast majority of the right-thinking publics but, nevertheless, despite our generally sleazy nature, many of us actually read the law and have a greater capacity to interpret, apply, implement or enforce it. Don't let the general opprobrium with which you hold the legal fraternity blind you to the fact that we were trained to practice law and those of us who attended an advocates' training programme are better prepared to litigate disputes before courts of law than even the most precocious legal dilettante. This is all to remind you that the coming electoral dispute, the petition by Raila Odinga challenging the election of Uhuru Kenyatta to a second presidential term, will not be determined by addressing the possibility of "chaos" should the Supreme Court find that the election was not credible and that its lack of credibility is founded on the electronic tampering with the Kenya Integrated Election Management System, KIEMS. The Jubilation's paid tame mouthpieces advancing this narrative do the nation a great disservice by pretending that they know and understand the law, the procedures of the Supreme Court and the factors that will influence the determination of the election petition. They will not stop, this we know, but neither should they be allowed to purvey lies and half-truths as if the same were legal insights of great import. They must be exposed for the charlatans they are -- and mercilessly mocked for their effrontery.

We must disinfect our constitutional fabric

Article 231(3) of the Constitution states that,

(3) The Central Bank of Kenya shall not be under the direction or control of any person or authority in the exercise of its powers or in the performance of its functions.

Article 245(4) states that,

(4) The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—
(a) the investigation of any particular offence or offences;
(b) the enforcement of the law against any particular person or persons; or
(c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service. (Emphasis mine)

(Keep in mind that according to Article 243(2) the National Police Service consists of the Kenya Police Service and the Administration Police Service.)

Most of you are now familiar with Article 47 in the Bill of Rights which states, in clauses (1) and (2) that,

47. (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

Few of you will be familiar with the judgment of the High Court in Petition No. 495 of 2015 between the Kenya Human Rights Commission (Petitioner) and the Non-Governmental Organisations Co-ordination Board (Respondent) which stated, in paragraph 70, that,

70. I come to the conclusion that the decision by the Respondent to commence or effect the process of deregistering the Petitioner as a non-governmental organisations under the Non-Governmental Organisations Co-ordination Act, 1990 was riddled with impropriety and procedural deficiencies contrary to Articles 47 and 50(1) of the Constitution. The same position applies to the decision to order or direct the freezing of the Petitioner's bank accounts. (Emphases mine)

In recent days, the executive director of the NGO Co-ordination Board has written to the chairperson of the Kenya Human Rights Commission levelling the same charges as it had in 2015 and attempting to initiate the same administrative measures it had unsuccessfully attempted to initiate in 2015. In a fresh gambit, and against the African Center for Open Governance, it has written to the Director of Criminal Investigations, which is an organ of the Kenya Police Service, among other things, to,

"urge your office to move with speed to shut down the operations of this organisation and further arrest the directors and members of AFRICOG, for contravening the foregoing provision; and with a view to arraigning and prosecuting them in a competent court of law".

(It doesn't seem to have occurred to the Board's executive director that while the police can surely arrest suspected offenders, the role of prosecuting the suspects is entirely in the hands of the Director of Public Prosecutions; police prosecutors were phased out by virtue of the operation of Article 157(6), (9) and (10).)

It seems that the NGO Co-ordination Board's executive director is determined to make himself a pestilential presence in the High Court for having his persistently unconstitutional directives challenged by the targets of his administrative wrath. If his exercise and, to my view abuse, of administrative power aren't grounds for challenging his continued occupation of his office as offensive to the national values and principles of governance enshrined in Article 10 of the Constitution, I don't know what are.

It is a pity that the High Court didn't remind the executive director that he had no authority to direct the National Police or the Central Bank to do anything; independence means that the executive director's "advice" should have been couched in the weaselly form of a complaint, which he has every right to do if it suspects that an offence is being committed. But that he had the gall to repeat the errors of 2015 in regards to the Kenya Human Rights Commission and the African Center for Open Governance as if he hadn't a constitutional care in the world raises grave doubts as to his continued constitutional suitability to hold public office.

We have no choice now but to do the hard work of monitoring the behaviour of public officers, especially when they purport to wield powers they do not posses or issue directives that they cannot. Even if few of us will have the resources to challenge constitutionally errant public officers in courts of law, we must do our part in exposing the constitutional charlatans purveying their illicit transactions in public offices. Sometimes, though not always, sunlight is sufficient disinfectant for the occasional pest in our constitutional fabric.

A pattern emerges

The Fourth Schedule to the Constitution is an interesting thing. The national government, in Part 1, is responsible for,

22. The protection of the environment and natural resources with a view to establishing a durable and sustainable system of development, in particular--
(a) fishing, hunting and gathering;
(b) protection of animals and wildlife;
(c) water protection, securing sufficient residual water, hydraulic engineering and the safety of dams; and
(d) energy policy,

while county governments, in Part 2, are responsible for,

2. County health services, including, in particular--
...
(g) refuse removal, refuse dumps and solid waste disposal.
3. Control of air pollution, noise pollution, other public nuisances and outdoor advertising.
...
10. Implementation of specific national government policies on natural resources and environmental conservation, including--
(a) soil and water conservation; and
(b) forestry.

In relation to the ban on plastic bags by the Cabinet Secretary for Environment and Natural Resources, the National Environment Management Authority has published an infographic that states, in response to the frequently asked question, "What are the major concerns of plastic bags?"

Plastic bags are usually manufactured for single use and generally tear or puncture after a first use. They are easily transported  by the wind and are some of the most visible components of roadside and shoreline litter. Plastic bags are produced from oil and natural gas, and never fully biodegrade, remaining in the environment as small or even microscopic particles, essentially forever.

"Roadside and shoreline litter" are "solid waste", the disposal of which is the responsibility of the county governments. The Fourth Schedule, in relation to the responsibilities of the national government vis-a-vis soil and water conservation -- which may be affected by the non-biodegradability of plastics -- is limited to the making of specific policies whose implementation is left to the county governments. (I am aware that "policy" may include legislation like the Cabinet Secretary's "ban" but the enforcement of that legislation is solely the responsibility of county governments.)

@Keguro_ wonders what NEMA's and the Ministry's legal departments do with their lawyers. It is a question that I fear may never be answered in full. It should have been obvious from a reading of the Fourth Schedule that the Cabinet Secretary's purported ban does not pass constitutional muster. This is in addition to its other glaring infirmities when seen in the light of the Cabinet Secretary's powers under section 86 of the Environmental Management and Co-ordination Act, 1999.

@Olez observes that there is no (presumably, national) concrete solid waste management plan, but that is not strictly accurate, is it? Solid waste management has always been the preserve of local authorities and their successors, county governments. What those plans have been is poor. Part of the reason they have been poor plans is that the participation of the people in their formulation, implementation or enforcement has been inadequate, to say the least. As a result, county governments, and their licensees, simply collect solid waste and dump it in designated (and, frequently, undesignated) zones. In these places, human scavengers, at great risk to their safety and health, sort the sold waste into different categories, plastics included, and sell them on to waste-recyclers and other manufacturers. In the absence of a national solid waste management plan on paper, this is the management system in place at the county level, a system that the Ministry is mulishly and deliberately ignorant of.

There is little different between the Cabinet Secretary and the chief executive of the Kenya Film Classification Board or the executive director of the NGO Co-ordination Board: all three have attempted to exercise administrative powers that don't exist in law, are attempting to enforce laws that do not exist and do both with the threat of draconian fines and other penalties. One is a mistake, two is a coincidence, but three is a pattern. We did not stop the KFCB head honcho because we laughed at his buffoonery. We have so far failed to stop the NGO Co-ordination Board because he is "protected from on high". Now it is almost certain that the Cabinet Secretary will get her way with this farce of a ban.

No ban

These are the elements of an offence: something is prohibited, the commission of which shall lead to consequences (usually) such as a fine or imprisonment or both. That, in essence, is what a statutory provision purporting to outlaw any act should do.

Ask yourself this: what is the penalty for using, manufacturing or importing plastic carrier and flat bags on or after the 28th August? Is possession of plastic bags synonymous with use, manufacture or import?

I have read the Environmental Management and Co-ordination Act, 1999 carefully. It creates 51 offences, but it is section 144 that should interest you:

Any person who contravenes against any provision of this Act or of regulations made thereunder for which no other penalty is specifically provided is liable, upon conviction, to imprisonment for a term of not less than one year but not more than four years, or to a fine of not less than two million shillings but not more than four million shillings, or to both such fine and imprisonment.

"Ah ha!" I hear some of you saying. The plastic ban says that the Cabinet Secretary has banned the "use, manufacture and import" of plastic bags so if one uses, manufactures or imports plastic bags, one commits an offence. QED! It is not quite so simple: the Cabinet Secretary's Notice is not a regulation at all because it does none of the things contemplated by section 86 of the Act (the provision, presumably, under which the Notice was published). Therefore, contravening the provisions of the "ban" is not an offence under the general penalty contained in section 144.

Look at it from this perspective: the Act does not give the Cabinet Secretary the power to ban anything. Therefore, she cannot ban the use, manufacture or import of plastics. Therefore, her "ban" is unenforceable. Therefore, there is no ban. Therefore, using, manufacturing or importing plastic bags is not an offence. Therefore, if one does use, manufacture or import plastic bags, one shall not be liable to "imprisonment for a term of not less than one year but not more than four years, or to a fine of not less than two million shillings but not more than four million shillings, or to both such fine and imprisonment".

Unconstitutional and unenforceable

IN EXERCISE of the powers conferred under section 3 and 86 of the Environmental Management and Co-ordination Act, it is notified to the public that the Cabinet Secretary for Environment and Natural Resources has with effect from 6 months from the date of this notice banned the use, manufacture and importation of all plastic bags used for commercial and household packaging defined as follows:

(a) Carrier bag—bag constructed with handles, and with or without gussets;

(b) Flat bag—bag constructed without handles, and with or without gussets.

Dated the 28th February, 2017.—Gazette Notice No. 2356 of 2017, Kenya Gazette

The 28th August is less than two weeks away and the ban on the use, manufacture and importation of all plastic bags used for commercial and household packaging (carrier bags and flat bags) will come into force. Or will it?

The obvious question is: Does the Cabinet Secretary have the power to impose the ban under sections 3 and 86 of the Environmental Management and Co-ordination Act (No. 8 of 1999)? I am afraid that the Cabinet Secretary does not enjoy such powers. Moreover, the East African Community Customs Management Act, 2004 is the statutory regime governing the import of plastics in the East African Community (see sections 18 and 19, and the Second Schedule to the Act). These, however, are not difficult bans to impose because imports can be seized at the ports of entry into Kenya and manufactured goods can be seized in the manufacturing plants and factories or distribution centres.

The ban on the use of plastic carrier and flat bags is something else altogether.  The agency that is likely to be charged with the mandate of enforcing this ban is the National Environment Management Authority, NEMA, and not devolved governments. The former does not have the capacity -- neither human nor financial -- to enforce the ban that the latter have.

Use is likely to be common at the individual and household level, and at industrial level, and the vast majority of offenders are likely to be individuals found "using" plastic bags. The enforcement of the ban is likely to catch in its dragnet hundreds of thousands of Kenyans, at whom the law-books will be hurled with self-righteous environmental zealotry. Can you imagine the millions of man-hours that will be wasted detaining and punishing the hundreds of thousands of Kenyans who will be accused of contravening the provisions of the ban?

Kenya is not Rwanda, our nearest neighbour to have imposed the plastic ban. A nation that has a high degree of centralised official power where, because of its history, the national government enjoys enormous powers, it was easy to impose a plastic ban. Because of its small plastic manufacturing base, there was muted opposition to the plastic ban. None of the circumstances that prevailed in Rwanda prevail in Kenya.

We don't have a centralised government anymore; the devolved governments have a role to play in environmental management under the Fourth Schedule to the Constitution. We have a very wide plastic manufacturing base as well as a well-entrenched import/export and distribution network. Finally, though we are yet to witness vigorous litigation, this ban will not come to pass without opposition -- strong opposition.

There was a way of achieving the objects of the ban without imposing a ban. It would have required the hard work of policy-making that the Ministry has failed to engage in. Public policy works best when it takes into account all the relevant concerns of key stakeholders. In this case, the needs of millions of Kenyans were given short shrift by the Ministry and their behaviour was seen only in one context; they were seen mostly as litterbugs, and they had no other use for plastic bags but to use and thoughtlessly and haphazardly discard in the "environment".

Environmentalism zealots often live in a utopian world where their creed brooks no dissent and naysayers are shunned, at best, or prosecuted to the fullest extent of the environmental law. Environmentalism has attained the status of a religious canon in the Ministry and NEMA even as environmentalism's apostates continue to highlight its shortcomings and false assumptions. I will be interested to see how this clash of worldviews is handled when it becomes -- inevitably -- apparent that the ban is unconstitutional and, therefore, unenforceable.

Don't dismiss them all

Between 1990 and 2002, the Second Liberation movement forced the Government to confront the nettle that was constitutional reforms. The broad coalition known as civil society campaigned n many fronts and the result was the establishment of the Constitution of Kenya Review Commission whose outputs were the Ghai draft and the Wako draft, the latter being put up to a referendum in 2005. The Wako draft was defeated in the referendum, Mwai Kibaki went on to fiddle with the membership of the Electoral Commission of Kenya, and Kenya descended into an orgy of murder, violence and displacement in 2007/2008. 

Between 2008 and 2010, a political settlement hammered out between Mwai Kibaki's government and the Opposition appointed a Committee of Experts to give constitutional review one more push. In 2010, a draft was put up to a referendum and ratified by an overwhelming majority of voters. The violence of both the 2013 and 2017 general election was muted -- only parts of the country experienced violence related to the general elections.

The question has been put, though: did the Government have any hand in the ratification of a new constitution in 2010? Those who are opposed to the Government in its current and former forms have argued that the effort to promulgate a new constitution belongs entirely to non-governmental actors. They argue that because many senior political leaders serving in the Government opposed constitutional reform of any form, the Government, too, opposed constitutional reform. They have made the same mistake that acolytes of ruling political leaders have made, of conflating individual political leaders in the Government with the Government.

Let us look at the efforts of the Committee of Experts. Nzamba Kitonga, his fellow committee-members, and their staff in their secretariat, were almost all non-government officials but their salaries and financing was almost entirely appropriated by Parliament, the legislative arm of Government. Their drivers, security personnel, cars, equipment and offices were procured and supplied by the Government. The law that led to the establishment of the Committee was proposed and passed by the Government. And the referendum that ratified the new constitution was organised by the Government.

The Government may not have been the institution that advanced the cause of constitutional reform, but without Government's support, there would have been no expert committee, no referendum, and no new constitution. We must learn to look beyond the elected members of the Government or the seniormost appointed ones like Cabinet Secretaries, Principal Secretaries and constitutional commissioners. The massive enterprise known as the public service contains women and men who have contributed immensely to constitutional reform, advancing the causes championed by civil society and the non-Government sectors. Without these women and men, many progressive ideas would have been snuffed out before they saw the light of day. They are very much "Government" as the president and deputy president.

These women and men know how the "machinery" of Government functions, which levers to push in order to advance any agenda. More often than not, in the absence of a coherent strategy by the non-Government sectors, these women and men will perform their duty. But when called upon to undertake unlawful schemes for patently unlawful ends, they will rebel, though their rebellion may not be as public as civil society lions may expect. Dismissing them as not being part of the constitutional reform movement is a mistake and declaring in sweeping terms that the are not to be trusted is foolish and short-sighted. If you think that it is right to dismiss and distrust the vast majority of the public service, please try and amend the constitution without its assistance and advice -- and see how far you go.

Let them grieve as they will

It must gall the conformists to be confronted by the women and men determined to chart their on paths. After all, think about it, everyday we are exhorted in subtle and unsubtle ways to do what they other ones are doing by being reminded what the "right thing" is and the consequences of doing the "wrong thing". Thought-control, of every shade of political persuasion, is the norm now and it is why we are expected, by his legions of fans, to think of Boniface Mwangi's failed electoral campaign as the "right" kind of campaign, and by the most fervent pro-Government dingbats that there is a "right" way of mourning the catastrophic end to the 2017 general election in which Raila Odinga's most formidable rival has been re-elected to another term in office.

Our election campaigns are extremely vigorous and extremely public, so why can't the powers-that-be permit us to mourn vigorously and publicly? There is no cause to ask people to mourn privately as if they are ashamed of their grief. And yes, political defeats are wrought with emotional bathos that demand very public dirge-singing and wailing. The police can't demand that a section of distraught Kenyans should not perform their grief publicly and loudly; they can only ask that in performing their grief, these Kenyans should not injure their fellowman. But if all seven million Kenyans who voted for Raila Odinga want to take to the streets, wail into the sky and beat their chess in anguish, Uhuru Kenyatta's acolytes cannot declare them to e "uncivilised" and dismiss them as "sore losers" but should take a moment to remember that in Mr Kenyatta's re-election, the promise of a break with Kenya's cruel past has been postponed. Again. And this is one among many other reasons why publicly performing their grief is vital.

Hope springs eternal

What is the truth? Were the servers that the Independent Electoral and Boundaries relied on for the general election hacked, and if so, to what end? Did the torture and murder of the IEBC official in charge of information and communications technology -- including the information management system used in the general election -- have anything to do with the alleged hack?

The presidential candidate of the National Super Alliance claims that the IEBC servers were hacked with the intent of inflating the votes that the incumbent president received in the general election. Mr Odinga has not offered persuasive proof that the hack took place and that it was with the intention of inflating Mr Kenyatta's votes. The IEBC denies that the hack took place though it admits that there were attempts to hack the system. Journalists and news reporters have failed to independently confirm whether or not the hack took place.

We don't know for sure what the truth is. We can't trust journalists and media reporters because we are afraid that they have taken partisan positions that remain unsubstantiated by any facts. We can't trust what we are reading on social media platforms such as facebook or twitter because we don't know whether or not those advancing particular stories are so-called "bots" or are being manipulated by mysterious organisations like Cambridge Analytica that is feared to have powers that have affected other elections in other countries. We can't trust government officials because many of them seem to have taken hardline political positions -- mostly against the National Super Alliance and its presidential candidate -- that militate against the public service's supposed political neutrality.

This trust-deficit has tragic consequences. Over the weekend, the police have used deadly force. The police claim that they had no choice because the people it killed were in the process of committing crimes and when confronted by the police, chose to attack rather than be arrested. What many Kenyans wish to know is how many have been killed by the police. Politicians and activists aligned with the National Super Alliance claim that dozens have been killed. The police claim that fewer than ten people have been killed. Journalists and reporters have not reported a trusted count of how many have been killed by police. Pro- and anti-government social media accounts have published widely divergent claims of the total number of people killed by police. It is tragic that Kenyans have been killed and the circumstances of their deaths -- and the number of the dead -- remain unknown.

Our elections and everything connected to them are now shrouded in mystery. Since the devastating debacle of the 2007 general election, few Kenyans have trusted the outcome of elections, few Kenyans have trusted the claims advance by both sides of the elections, and few Kenyans have trusted the news-reporting on and about the elections. We have come to accept that the elections have been flawed without fully understanding what the flaws are and what could be done to fix them. This as contributed to the sense of being under siege every time we have held general elections, with both sides afraid for their lives and, therefor, taking precautions such as leaving their homes in "hot spots" for the safety and security of their "home areas". Because of this, more and more Kenyans distrust each other when it comes to politics and this, sooner or later, will translate to distrust over many public policy questions. This is no way to govern or be governed.

Yet again we are faced with an opportunity to reckon with our public policy choices. We can choose to hold a post-mortem of the 2017 general election and examine everything that pubic institutions did during the election. We can choose to examine the mechanics of political parties and political alliances and how they can be improved to give voters and party members a greater voice in whom gets nominated to fight an election. We can examine the interference of non-Kenyan organisations and foreign powers, and what we can do to reduce their influence or effect on our electoral process. We can finally have a full accounting of the sources of campaign funds and what those funds are intended to accomplish. Hope springs eternal that Kenyans are prepared to have this discourse and to have it well before the next general election.

His Migunaness lost. To Sonko. LOL

I am so happy Le Kidero has been defeated. But I am absolutely over the moon that His Migunaness has lost by a very wide margin. I never liked him at all. He was rude and condescending. His treatment of his women rivals was sexist and misogynistic. He was ungracious and mean-spirited. He used his great intellect as a cudgel to browbeat those he saw as intellectually inferior -- and unworthy -- and held his own morality as superior to everyone else. He was the only "clean" man in Kenyan politics -- after all, he wasn't in the invidiously corrupt grip of the "cartels". He was the only man who could "save" Nairobi City. He went through two running mates and campaigned on social media and TV studios, bloviating about the inherent corruption of his rivals and explaining little of his grand plans for the Capital. He has never won an election and no political party has ever dared to nominate him to stand in an election. This should have told him something even though I doubt he would have listened to himself if his conscience dared remind him that he was not perfect. Thank God he lost.

The Iron Lady felled

The Iron Lady of Gichugu was among the battery of lawyers that battled Baba Moi's prosecutors and Special Branch pliers-wielders when they went hammer and tongs after Raila Odinga, George Anyona, Charles Rubia, Kenneth Matiba and Masinde Murilo in the 1990/1991. She has been a Minister for Water and a Minister for Justice. In both, only the uncharitable will claim she was anything but professional -- and effective. She has headed a political party -- Narc-K -- and campaigned for the presidency (2013) as an equal to many far lesser men. Though she will be remembered for her hard-eyed defence of Mwai Kibaki's tainted electoral victory, she wasn't the only one and, I believe, in the fullness of time, history will be kind to her for it. I am disconsolate that she has been defeated by a political parvenu whose connection to one of the biggest financial scams in recent memory has yet to be fully explained. I am utterly disconsolate.

Thank God it wasn't Grand Pricks

I am unsure how I feel about Charles Njagua Kanyi's electoral victory over Steve Mbogo and Boniface Mwangi in Starehe constituency. More important;y, I am unsure how I feel about Mr Mwangi's loss to Mr Kanyi. I am, however, very sure about Mr Mbogo's loss: ecstatic! Ever since I saw that short video clip of him being "welcomed" by an exuberant crowd at the Jomo Kenyatta International Airport and he managed to mangle both "Grand Prix" -- I will never un-hear "grand pricks" -- and "Bernie Ecclestone", I wondered whether the people who had elected Maina Kamanda would be swayed by Mr Mbogo's gauche bombast. That answer has been definitively given, though not as many of the High Priestesses of the #KOT had hopped -- in My Mwangi's favour.

Don't cock it up

It took me three hours and forty minutes to vote on the 8th August. I joined the queue at the Bidii Primary School Polling Station at noon and cast my final ballot at 3.42pm in stream 16 of polling station 15 in Makadara Constituency. I was exhausted but elated that I had voted for the women and men I wanted to vote for. (Whether they do anything worthwhile in the next five years is all up to how willing I am to get in their faces when they do stupid things.)

Of course there was no violence on the 8th and there was none on the 9th either. It's the 10th and in Makadara things seem to be getting back to normal -- Double Ms were back on the mostly empty roads. My cigarette guy hasn't reopened but that may be because he travelled to Murang'a to vote and may have decided to spend a few extra days there. His absence is good for my health as seeing that Tuskys Eastlands doesn't do tobacco or alcohol and Uchumi Buru Buru is shit these days and all dukas seem to eschew cigarettes as a rule and no wines-and-spirits seems to sell anything other than wines and spirits and beer.

I have followed -- sporadically -- "Joshua's" increasingly vehement assertions that the "IEBC system was hacked" and, quite frankly, even though I feel for the guy, it's time for him to can it and retire gracefully from active national politics. The only way his assertions will have any purchase is for whatever proof he advances in support to be endorsed by independent experts. Trotting out his pet "IT expert" to tell us that hacking took place is not enough.

The incumbent's fans are a graceless lot. If all of them were stricken by the greyscale that had stricken the sellsword Jorah Mormont, I would only feel a slight twinge of mercy -- but not much. They are the least graceful winners. It is almost certain that they will revive their accept-and-move-on choir and demand that the rest of the nation sing the chorus as enthusiastically as the choir most certainly will. I am not interested and, I suspect, neither are the hundreds of thousands -- perhaps, millions -- who think the Jubilation is made up of fast people with the consciences of sicario.

In the end, whether things remain largely peaceful will turn on whether Baba can make his allegations stick and how many Kenyans believe him if he does. The commission has been given every opportunity to demonstrate its capabilities and its credibility; it has squandered most of them. This time round, by and large, the KIEMS worked and those whose details were available were able to vote. Everything else about the counting, tallying and transmission simply heightens tensions because so much remains unknown to so many interested parties. Our presidential elections are all high-stakes affairs and they can be tipped over into full-scale violence quite easily. The fate of these elections is in the hands of the commission. If it cocks it up I don't think we will ever trust an election ever again.